Elliff v. Oregon R. & N. Co.

Mr. Justice Moore delivered the opinion of the court. The defendant operates machinery at Wyeth, Oregon, and uses means to preserve railroad ties from speedy decay by their coming in contact with earth and by being exposed to the weather. In order to conserve timber from hasty demolition by the elements, a chemical preparation is employed, which consists of zinc chloride dissolved in warm water. This solution is forced by pressure into the pores of the wood, giving to it a degree of indestructibleness which, without such treatment, the timber would not possess. The binary compound so employed is commercially prepared by treating scrap zinc with" hydrochloric acid and by evaporating the resulting solution to crystallization, forming a caustic salt. The principal element used in the mixture in the case at bar is known in the market as “Hughes’ Zinc Chloride” and was incased in metallic drums about two feet in length and 20 inches in diameter, which, when filled with the salt, weighed about 800 pounds each. To dis — 70 — solve the chloride, the defendant uses a vat about eight feet long, six feet wide, and six feet deep, the bottom of which sets three feet below the level of a floor upon which the laborers stand when making the solution. The tank is about half filled with warm water, and, the metallic casings having been removed, there is placed around the crystallization a chain which is attached to another chain passing over a drum operated by differential blocks, one of which is secured to a beam above the vat, and with such tackle the chloride is raised above, and swung over the tank and lowered into the liquid, where it is mechanically suspended by the equipment until the salt is dissolved. From six to eight of these drums are generally used to each half, tank of water, and, when the solution attains the required potency, it is pumped into a retort, where it is used in treating railroad ties in the manner indicated. The plaintiff, as a witness in his own behalf, testified: That in July, 1904, he was employed by the defendant to keep a sufficient quantity of coal in the bunkers at Wyeth, and to maintain fires under the boilers while the other employees at that place were eating their dinners; that August 8th of that year he was directed by the assistant engineer, who had Charge of the machinery used in treating ties, and also ordered by the timekeeper at the works, to leave his employment and to aid another laborer in lowering zinc chloride into the vat; that, though he had once prior thereto assisted in such work, he had no knowledge of the dangerous character of the mixture in the tank, nor was he advised or warned in relation thereto; that objecting to the change of employment, but obeying the orders given, he helped to place in the vat several cylinders of the caustic salt, the number of which he could not state, when the assistant engineer, in order to facilitate the dissolution of the chloride, shook the suspending chain and thereby caused a splash of the liquid to enter the left eye of the witness; — 71 — that extreme pain resulted, to alleviate which he immediately applied water thereto, and soon thereafter resumed his labor, which he continued to perform until August 13, 1904; when he left the service. He further deposed: That, though he was 55 years old at the time he sustained the injury, he had never used glasses, except while reading; that his eye continued to distress him for about three weeks, when the pain subsided, but the sight began gradually to- grow dim until he could, with the injured optic, scarcely distinguish light from darkness. He also detailed the medical treatment which he had received and which proved unavailing as a cure. 1. It is contended by defendant’s counsel that the facts hereinbefore set forth do not bring the case within the provisions of our statute, which, in certain instances, imposes upon railroad corporations liability for injury to their employees, and that the testimony hereinbefore set forth shows that the hurt which the plaintiff suffered was due to the negligence of a fellow servant, for which their client was not responsible. The act referred to provides, in effect, that every corporation operating a railroad in this State shall be liable in damages for all injury sustained by any of its employees, when the hurt results from the wrongful act, neglect, or default of any agent or officer of such corporation, superior to the servant injured. Laws Oregon, 1903, p. 20. The defendant is designated in the title of the action as the “Oregon Eailroad & Navigation Company,” which name may import a corporation (Wild v. O. S. L. R. Co., 21 Or. 159, 161: 27 Pac. 954); but the pleadings nowhere state that the company is engaged in operating a railroad in this State. 2. Employers’ liability acts are usually applicable to railroad corporations, and, though the legislation is special in character, it is based on the ground that, as the operation of a railroad is attended with danger to the persons engaged in the service, the imposition upon — 72 — such artificial beings of liability for injury to their servants, resulting from the negligence of a co-employee, will necessitate an exercise of greater care in the. selection of such persons, thus justifying the means adopted to preserve and protect human life. Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205, 210 (8 Sup. Ct. 1161: 32 L. Ed. 107). The pleadings herein were evidently not framed to meet the requirements of the statute, and, as a construction thereof is not involved, it is unnecessary to determine whether or not the preservation of railroad ties from decay comes' within - the provisions of the enactment. 3. The action being based on the principles of the common law, it is argued by defendant’s counsel that the hurt complained of, if any, resulted from the negligence of a fellow servant, which danger was assumed by the plaintiff when he entered the service, and that, this being so, an error was committed in denying a motion for a judgment of nonsuit. It is maintained by plaintiff’s counsel, however, that though a co-employee may have contributed to the injury which Elliff suffered, the proximate cause of the hurt was the failure of the defendant to warn him of the dangerous character of the liquid which splashed into his eye, and hence no error was committed as alleged. When the hazard attending the usual exercise of any work, required of an inexperienced laborer, is not apparent, it is incumbent upon the' master to inform him of the dangers ordinarily incident to the service, and if, in consequence of any failure in the performance of this duty, the servant is injured, the master is liable for damages for the neglect. 2 Bailey, Personal Inj., § 2664; 4 Thompson, Neg., § 4123; 20 Am. & Eng. Enc. Law (2 ed.), 97; 26 Cyc. 1165. In Bowers v. Star Logging Co., 41 Or. 301, 308 (68 Pac. 516), Mr. Chief Justice Bean states the obligation imposed upon an employer in relation to unknown perils as follows: “It is the duty of the master not to expose — 73 — an inexperienced servant and one unfamiliar with the employment and risks attendant thereon to a dangerous service, without giving him warning of the danger and instruction how to avoid it, unless both the danger ana the means of avoiding it while he is performing the service required are apparent to the servant, and particularly is this true when the servant is ordered or directed to perform some service not contemplated in his original contract of employment.” The obligation which the law thus imposes on a master, to warn a servant of the dangerous character of the instrumentalities about which he is required to perform labor, is frequently invoked in behalf of an employee of immature years, because such a person does not ordinarily appreciate the hazard to which he is exposed, or practice that degree of discretion which servants of riper years usually estimate and generally exercise. This duty is not limited to an adolescent employee, however, but extends also to an adult servant who is inexperienced. Thus, in Ingerman v. Moore, 90 Cal. 410, 422 (27 Pac. 306: 25 Am. Rep. 138), in discussing this subject, Mr. Justice Dehaven says: “It is true, this rule, which requires the employer to give proper instructions, is most frequently applied in cases where persons of immature years are employed about dangerous machinery; but the same principle governs where the person so put to work is of mature years, but withoút experience in the particular work, and without knowledge of the actual dangers attending it. But, of course, the fact that the person injured was of mature years, as was the plaintiff here, is a matter for the careful consideration of the jury in determining whether he fully understood and appreciated the dangers of his position.” 4. The testimony shows that, at one time prior to his injury, the plaintiff had aided other persons in dissolving the caustic salt, and that such material was incased in drums, which were marked “zinc chloride”; but it does not appear that he was aware of its erosive — 74 — properties, and, in the absence of such information, it is not to be supposed that he, a common laborer, had knowledge of the chemical characteristics of the mixture, the strength of which depended upon the quantity of the chloride that was placed in the vat. Wagner v. Jane Chemical Co., 147 Pa. 475, 479 (23 Atl. 772: 30 Am. Rep. 745). “One,” says Mr. Justice Lord, in Roth v. Northern Pac. L. Co., 18 Or. 205, 213 (22 Pac. 842, 845), “may know the facts, and yet not understand the risk.” 5. The term “zinc chloride,” to a person without knowledge of its chemical qualities or caustic properties, might possibly be as meaningless as sodium chloride, the phrase used to indicate common salt. To protect humanity from any injury that might result from careless exposure of baneful drugs or matter, statutes have been enacted requiring each bottle, box, or bundle containing such noxious substances to be plainly marked “poison”; and further to attract attention to the label, and possibly to aid those persons who cannot read such warning, a representation of a skull and crossbones is also used as a danger signal. 6. Though zinc chloride may not be so lethal as to require any particular admonition to be marked on the casings containing the substance, it does not appear that the caustic salt used by the defendant, at the time of the injury, was labeled in any manner, so as to notify persons, unacquainted with the substance, of the possible risks to be encountered by the use thereof. The plaintiff haying no knowledge of the character of the solution, and the danger therefrom not being apparent,- he did not assume the hazard incident to dissolving the zinc chloride. Fox v. Peninsular Works, 84 Mich. 676 (48 N. W. 203). The defendant therefore, in taking him, a common laborer, from his regular employment and requiring him to aid in making the mixture, without any warning of the danger or advising him how to avoid injury therefrom, was negligent. 4 Thompson, Neg., — 75 — § 4065; Bowers v. Star Logging Co., 41 Or. 301 (68 Pac. 516). 7. It will be remembered that the agitation of the chain by a fellow servant, caused the solution to spatter into the plaintiff’s eye, and, this being so, can it be said that the defendant’s failure to warn Elliff of the dangerous character of the mixture was the efficient cause of the injury? In actions of this character .it is essential to a recovery that the negligence alleged should be the proximate cause of the hurt. 20 Am. & Eng. Enc. Law (2 ed.), 78. 8. “The proximate cause,” says a text-writer, “is to be defined, generally, as the cause which led to or might naturally be expected to produce the result.” Buswell, Personal Inj. (2 ed.), § 97. 9. This author, at section 103 of the work mentioned, further observes: “It is a general rule that a person injured by the fault of another, without which fault the injury could not have occurred, is not to be deprived of his remedy because the fault of a stranger, not in privity with him, also contributed to the injury. For the original negligence still remains as a culpable and direct cause of the injury, and the intervening events and agencies which may contribute to it are not to be regarded. This is the generally received doctrine, unless a contributory cause of the injury has been the negligence or fault of some person towards whom the plaintiff sustains the relation of superior or master; in which- case the negligence is imputed to him, though he may not have personally participated in, or had knowledge of it. * * Upon an application of the general rule, it is held that the contributory negligence of a fellow servant will not defeat an action for an injury against the common master.” An employer, whose negligence causes an injury to his servant, is liable therefor in damages, notwithstanding his want of care is united with some remote cause. Thus, where the carelessness of a third person co-operates with the neglect of the master, in causing an injury, the — 76 — act of such person affords no immunity to the employer, if the hurt would not have occurred except for the master’s remissness in the performance of the duty devolving upon him. Buswell, Personal Inj. (2 ed.), § 201; 26 Cyc. 1092; Knahtla v. Oregon S. L. R. Co., 21 Or. 136, 149 (27 Pac. 91). 10. Whether or not the injury to the plaintiff would have happened, but for the negligence of the defendant in failing to warn him, is problematical, and in cases of doubt as to which of several probable causes produced a hurt, the case should be submitted to the jury for their determination of the question. Buswell, Personal Inj. (2 ed.), § 110; Hartvig v. Northern Pac. L. Co., 19 Or. 522, 525 (25 Pac. 358); Schumaker v. St. Paul R. Co., 46 Minn. 39, 43 (48 N. W. 559: 12 L. R. A. 257); Hayes v. Michigan Cent. Ry. Co., 111 U. S. 228, 242 (4 Sup. Ct. 369: 28 L. Ed. 410). 11. We think the evidence fairly tends to establish the fact that the efficient cause of the hurt complained of was the defendant’s negligence, though the carelessness of a fellow servant undoubtedly contributed in no small degree to the injury; but such co-operation was not willful. It is insisted by defendant’s counsel that, if the plaintiff was employed to shovel coal and to keep up the fires under the boilers at certain times, he, without consulting the superintendent who had charge at Wyeth, obeyed the orders of men who were not authorized to direct him, and in doing so was injured, thus showing that he was a volunteer, and precluding a recovery from the defendant of any damages that he may have sustained. The plaintiff’s counsel insist, however: That Elliff aided in dissolving the chloride by order of sub-bosses who were accustomed to exercise a large measure of authority in directing the employees; that the plaintiff rendered the service in view of the superintendent, who made no objection thereto, and who tacitly, at least, approved of and — 77 — ratified his employment at the place where he was hurt; and that as the answer affirmatively alleged that the plaintiff, at that time, was performing his usual duties, the defendant is now precluded from questioning the authority of the men who directed him to assist in making the mixture. The assistant engineer stationed at Wyeth at the time the plaintiff sustained the injury complained of, was Claude Weidemeir, who, as a witness for the defendant, testified: That he then was a sub-boss, having men under him whom he managed, and also superiors over him; that he .directed the plaintiff to work at the vat; and that Elliff was called a general utility man and did anything required of him. D. Allerton, a chemist, as the defendant’s witness, stated upon oath that- he was superintendent of the tie-treating plant, at the time specified, but that he had very little to do with the laborers, and that Weidemeir, to a certain extent, had charge of the vat. The case of Mellor v. Merchants’ Mfg. Co., 150 Mass. 362 (23 N. E. 100: 5 L. R. A. 792), illustrates the legal principle for which the defendant’s counsel contend— that the plaintiff, at the time he was hurt, was a volunteer. In that action an employee in a mill undertook of his own free will to make repairs outside of his regular duty, upon the suggestion of a fellow workman who had no authority over him, and with the consent of his own immediate superior, and it was held that he voluntarily took the risk of an obvious danger and could not recover, although he was exercising due care. Whatever the rule may be in such cases, we think it has no application herein, for the testimony conclusively shows that the plaintiff did not leave his work of shoveling coal by his own free will, but that, objecting to the change of employment, he aided in dissolving the chloride, pursuant to the orders of the assistant engineer, who undoubtedly possessed some degree of authority about the premises, and especially so, when it is remembered that the superin — 78 — tendent had very little to do with the laborers. A witness for the plaintiff testified that, immediately after the injury, Mr. Allerton saw Elliff, who informed him that he had received some of the chloride in his eye, and the superintendent made no objection that, in performing the service rendered, the plaintiff was a volunteer. We do not rest the decision, however, on any failure of the superintendent, after the injury, to make a statement in relation to the service which the plaintiff was required to perform pursuant to his employment, but refer to the fact as a circumstance from which the jury might reasonably have inferred that Weidemeir’s power was sufficient to order Elliff to leave his usual work and to aid- in making the mixture. Jenson v. Will & Finck Co., 150 Cal. 398, 413 (89 Pac. 113). 12. The complaint alleges that the plaintiff was taken from his usual work of coal heaving and required to assist in lowering zinc into a vat. This averment is denied in the answer, which alleges that when Elliff sustained the injury complained of he was performing his usual duties. No issue is made by the pleadings that at the time the plaintiff was hurt he was a volunteer. The averment, referred to in the complaint,, is adequate to rebut any inference which might arise that, in seeking employment, the plaintiff impliedly represented that he was qualified to perform any service which might be demanded of him. 13. We think the clause in the answer, which was offered in evidence, is sufficient when considered in connection with the testimony and state of the pleadings, to show that the plaintiff performed the service pursuant to the orders of a person who was authorized to represent the defendant. - 14. It is maintained by defendant’s counsel that the plaintiff, having adopted the affirmative matter in the answer, as hereinbefore stated, abandoned the cause of action set forth in the complaint, thereby precluding a — 79 — recovery, and that, this being so, the nonsuit should have been ¡granted. The- admissions in a pleading, like a declaration contrary to interest, are admissible in evidence against the party alleging the fact, though the pleading may be subsequently amended or withdrawn. Maxwell v. Bolles, 28 Or. 1 (41 Pac. 661); Feldman v. McGuire, 34 Or. 309 (55 Pac. 872); Sayre v. Mohney, 35 Or. 141 (56 Pac. 526). In Mott v. Consumers’ Ice Co., 73 N. Y. 543, it was held that, where a party gives in evidence an admission in the pleading of his adversary, he is not estopped from questioning a portion thereof which is against him, but he is at liberty to use the admission so far as it is in his favor, and to disprove the residue. The original answer, which was.offered in evidence, averred that the vat into which the zinc was lowered contained hydrochloric acid. This admission was consonant with the allegation of the complaint that the tank specified held dangerous acids and liquids. It is quite probable that no mineral pungent of the' kind specified was used in the tank, and it is certain that the term “hydrochloric acid” ' was inadvertently employed. To eliminate such phrase, however, an amended answer was filed by leave of court, thereby permitting the defendant to dispel any inference that the jury may have deduced from the original averment. 15. It is proper to state the theory of the defendant’s counsel in respect to the alleged injury. They maintain that the opacity of the plaintiff’s eye was not caused by any of the solution getting into it, and, in support of such hypothesis, a witness was called, who testified that, while working about the vat at Wyeth, a splatter of the liquid escaped and entered his eye, whereupon he immediately applied to the injured optic a preparation of soda, and that, notwithstanding such treatment, the inflammation was so great that he was obliged to occupy a darkened room for the remainder of the day, but the next morning — 80 — he had fully recovered from the hurt. It further appeared that though the plaintiff claims to have been injured August 8, 1904, he did not seek any medical aid for the alleged hurt until February 23, 1905, that he never used any neutralizing agent to counteract the action of the chloride, and that he continued to perform the service required of him until August 13, 1904. Expert oculists, who appeared as the defendant’s witnesses, severally testified that in his opinion the plaintiff’s defective sight was not due to external injury, but that the opacity was known as “infiltrated ceratitis,” a disease caused by malnutrition of the tissues, which, originating .between the layers of the cornea and extending to the surface thereof, renders it non-transparent. This question was, under proper instructions, submitted to the jury, whose general verdict for the plaintiff must be accepted as conclusive thereon. It is argued by defendant’s counsel that, when the plaintiff was injured, the water in the tank was hot, and that the vapor arising therefrom afforded indisputable evidence of the danger which was obvious, and, this being so, no duty devolved upon the master to warn him of any hazard, the existence of which he well knew. If scalding water had been a factor which in any manner contributed to the hurt, the legal principle invoked would probably be controlling. Weidemeir, who, it will be remembered, had charge of the vat and undoubtedly knew more about the temperature of its contents than any other person, testified, as defendant’s witness on direct examination, that the water was not hot, but lukewarm. 16. It is insisted by the defendant’s counsel that errors were committed in permitting Elliff, over objection and exception, to testify that David Allison, the timekeeper, and Claude Weidemeir, the assistant engineer, informed the plaintiff that the superintendent had ordered the witness to help make the solution. Though the testimony so objected to is in the nature of hearsay evidence, the — 81 — statements were believed by the plaintiff, who, acting thereon, left his work and assisted in the manner indicated, and, as such declarations were made at the time he obeyed the command, they formed a part of the res gestae, and, as such, were admissible in evidence. State v. Glass, 5 Or. 73. 17. Dr. H. C. Fenton, a specialist, who had treated the plaintiff’s eye after it was injured, appearing as the defendant’s witness, testified on cross-examination that he told Elliff he did not see how he could possibly aid him as a witness at the trial of this cause, owing to the fact that his time was so much occupied, and he was asked: “Didn’t you tell him when he came to see you about getting you to come up (meaning to the place of trial), that he didn’t need any physician; that his eye would show for itself?” To which he replied: “Oh, yes.” The plaintiff, in rebuttal, was interrogated as follows: “I will ask you to state whether or not last August you had a conversation with Dr. Fenton, in which you asked him to come up here as a witness, and whether or not he told you that you did not need an expert as a witness; that your eye would show for itself?” An objection to this question, on the ground that it was incompetent, irrelevant, and immaterial, that it was not proper rebuttal testimony, and that no foundation had been laid for impeachment, having been overruled and an exception allowed, the witness answered: “Yes, he told me that it wasn’t worth while to bring him up here, from the simple fact that the eye would show, and the judge and jury or any person of reasonable sense could see it. He said I wouldn't need him or any other expert.” The question last quoted was evidently intended to elicit proper rebuttal testimony, on the ground that, a part of Dr. Fenton’s declarations having been received — 82 — in evidence, the plaintiff was entitled to detail the whole thereof, relating to the same subject-matter. Section 702, B. & C. Comp. 18. The question, in our opinion, was not asked for the purpose of impeachment, for if such had been the case, the attorneys who represented the plaintiff, being learned in the law and experienced in the practice thereof, would have laid a foundation for the introduction of the declaration, by calling the attention of Dr. Fenton, when he was on the stand, to the time, place, and circumstance, when the language imputed to him was uttered. Elliff’s reply was fairly responsive to the question asked, and, if his answer extended beyond the limits of the inquiry, the evil effects of his testimony could have been eradicated by striking-out the objectionable part (Benjamin v. New York El. Ry. Co., 63 Hun. 629: 17 N. Y. Supp. 908); but no motion was interposed for that purpose. 19. Where a question put to a witness is in itself unobjectionable, but the answer goes beyond what is called for, and improper or incompetent testimony is produced, an objection to the question will not extend to the answer. Holmes v. Roper, 141 N. Y. 64 (36 N. E. 180); Gould v. Day, 94 U. S. 405 (24 L. Ed. 232). 20. An exception having been taken to an instruction requested by the plaintiff, it is argued by the defendant’s counsel that an error was committed in giving it, to-wit: “If you should find that the employment of plaintiff around said tank was one involving any peculiar labor, or that there was connected with the same any particular causes of danger of which the plaintiff was ignorant by reason of his inexperience, if you should find that he was inexperienced in said work, it is the duty of the master to instruct him upon those subjects and inform him what it is he need to be watchful of in the discharge of his duties; and, if the master neglects these things, he is held chargeable for the injuries that result from that neglect. Therefore,' if you should find that the work around said tank was dangerous, for the reasons alleged in said complaint, and that plaintiff did not know of said — 83 — danger, as alleged in the complaint, and that said danger, if there was any, was not obvious, and that the defendant was negligent in not warning him, as alleged in plaintiff’s complaint, then he is entitled to recover, even though you should find that plaintiff was injured by the act of his fellow servant, Weidemeir.” It is maintained that this part of the charge is in conflict with the averments of the complaint, in that it assumes that the plaintiff’s regular employment was around the- vat, and, that notwithstanding such usual occupation, it was incumbent upon the defendant to warn him of the dangers to which he was exposed. The first clause of this instruction seems to have been patterned after a part of the charge given in the case of Roth v. Northern Pac. L. Co., 18 Or. 205, 214 (22 Pac. 842), which was held to be proper in the light of the facts there involved, and, as the danger referred to in that case is quite similar to the hazard to which the plaintiff herein was exposed, we think the language complained of is not objectionable, when it is considered in connection with the duty devolving upon a master to warn an inexperienced servant in respect to latent dangers. 21. It is contended by defendant’s counsel that errors were committed in refusing to charge the jury as requested by them, as follows: “No. 7. There are many kinds of work in which danger is necessarily inherent, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, and the ordinary risks and dangers attendant upon the doing of such work are assumed by an employee who engages in such employment, and if you find that the plaintiff was engaged in a class of work of this kind, and that the accident was unavoidable, if it in fact happened, then he cannot recover, and your verdict under such circumstances should be for the defendant.” “No. 9. If the work in which the plaintiff was engaged at the time he claims he was injured was not work requiring particular knowledge and experience or skill to understand the dangers attendant upon it, if any there were, then the defendant would not be liable. It is not — 84 — required to keep a watch over its employees or to warn them of common dangers to which they may be subjected in the performance of their ordinary duties.” “No. 13. If plaintiff’s condition resulted from the fact that his system was impaired or because his blood was bad or impure, and if it would not have happened had it not been for said impaired physical condition, if it was impaired, then he cannot recover in this action, and your verdict should be for the defendant.” The request for instruction No. 7 disregards the plaintiff’s claim that he was not warned in respect to the dangers to which he was exposed. Notwithstanding the hazard may be inseparable from a performance of the service required, it is still the duty of the master to warn inexperienced servants, and particularly so as to latent dangers. The request was properly denied. 22. The common dangers incident to the performance of ordinary duties, as referred to in the request for instruction No. 9, may even be such as to require instruction from the master in respect thereto, if the employee is ignorant oí latent hazards. As the request omits this qualification, it was properly refused. 23. The request for the 13th instruction seems to imply that, if the hurt was inflicted upon the plaintiff at the time he was suffering from an impaired physical condition, and that the injury would not haye resulted if he had been free from ailment, he cannot recover. A text-writer, discussing this subject, says: “The fact that the plaintiff at the time the injuries were received was infirm from age, disease, or temnorary disorder, is not a bar to his right of recovery, although it may be the defendant’s act would not have produced the injuries complained of if the plaintiff had been in the prime of life or in normally healthy condition.” Watson, Personal Injl, § 195. No'error was committed in denying this request. Other exceptions are assigned, but, deeming them immaterial, the judgment is affirmed. Affirmed.